Rumpff v. Schorpp

• Decision Date: 25 November 2015
• Citation: 21 N.Y.S.3d 374,133 A.D.3d 1109
• Parties: In the Matter of Charles T. RUMPFF, Respondent, v. Tiffany SCHORPP et al., Appellants. Attorney for the Children, Appellant.
• Court: New York Supreme Court — Appellate Division

133 A.D.3d 1109
21 N.Y.S.3d 374

In the Matter of Charles T. RUMPFF, Respondent,
v.
Tiffany SCHORPP et al., Appellants.

Attorney for the Children, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 25, 2015.

21 N.Y.S.3d 375

Margaret McCarthy, Ithaca, for Tiffany Schorpp, appellant.

Liam G.B. Murphy, Groton, for Chastity Schorpp, appellant.

Daniel J. Fitzsimmons, Watkins Glen, attorney for the children, appellant.

Paul Corradini, Elmira, for respondent.

Before: LAHTINEN, J.P., GARRY, EGAN JR. and CLARK, JJ.

GARRY, J.

133 A.D.3d 1109

Appeal from an order of the Family Court of Schuyler County (Morris, J.), entered

21 N.Y.S.3d 376

December 26, 2013, which granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 6, to modify a prior order of custody.

Petitioner (hereinafter the father) and respondent Chastity Schorpp (hereinafter the mother) are the parents of two children (born in 2005 and 2008). Shortly after the younger child's birth, the Schuyler County Department of Social Services (hereinafter DSS) commenced neglect proceedings against both parents alleging, as relevant here, that they failed to provide the children with adequate supervision and guardianship as a result of their drug and alcohol abuse. In June 2008, the parents consented to the temporary placement of the children with the maternal grandmother, respondent Tiffany Schorpp (hereinafter the grandmother); later in 2008, they consented to neglect adjudications and continued placement of the children with the grandmother. Thereafter, the grandmother petitioned for sole custody, and, in December 2009, by stipulation of all the parties, Family Court entered an order giving joint legal custody pursuant to Family Ct. Act article 6 to the father, mother and grandmother and physical placement to the grandmother. In February 2011, the father filed a modification petition seeking physical custody of the children. This application was resolved in October 2011 by an order entered upon the consent of all parties, continuing the previous custody arrangements.

In March 2013, the father commenced this proceeding seeking sole custody of the children. Following a fact-finding hearing, Family Court granted sole legal custody and physical

133 A.D.3d 1110

placement to the father, with parenting time for the mother and visitation for the grandmother. The mother, grandmother and attorney for the children each appeal.

In a custody dispute between a parent and a nonparent, the "parent has a claim of custody of his or her child, superior to that of all others, in the absence of surrender, abandonment, persistent neglect, unfitness, disruption of custody over an extended period of time or other extraordinary circumstances" (Matter of Curless v. McLarney, 125 A.D.3d 1193, 1195, 4 N.Y.S.3d 666 [2015] [internal quotation marks and citation omitted]; see Matter of Michael B., 80 N.Y.2d 299, 309, 590 N.Y.S.2d 60, 604 N.E.2d 122 [1992] ; Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 549, 387 N.Y.S.2d 821, 356 N.E.2d 277 [1976] ). An order placing a child in a nonparent's custody upon a parent's consent is neither a judicial finding nor an admission of extraordinary circumstances (see Matter of Liz WW. v. Shakeria XX., 128 A.D.3d 1118, 1120, 8 N.Y.S.3d 713 [2015], lv. dismissed 25 N.Y.3d 1195, 16 N.Y.S.3d 53, 37 N.E.3d 112 [2015] ; Matter of McDevitt v. Stimpson, 281 A.D.2d 860, 861–862, 722 N.Y.S.2d 615 [2001] ). Here, no finding of extraordinary circumstances had previously been made. Thus, in the current proceeding, the grandmother bore the burden of establishing the existence of extraordinary circumstances. Only if this threshold showing was met could Family Court reach the issue of the children's best interests (see Matter of McBride v. Springsteen–El, 106 A.D.3d 1402, 1403–1404, 967 N.Y.S.2d 768 [2013] ).

Factors to be taken into account in determining whether extraordinary circumstances exist "include the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the parent allowed such custody to continue without trying to assume the primary parental role" (Matter of Battisti v. Battisti, 121 A.D.3d 1196, 1197, 993 N.Y.S.2d 804 [2014] [internal quotation marks, ellipsis and citation omitted]; see

21 N.Y.S.3d 377

Matter of Bevins v. Witherbee, 20 A.D.3d 718, 719, 798 N.Y.S.2d 245 [2005] ). We agree with Family Court that the record did not demonstrate that the father had surrendered, abandoned or neglected the children or was otherwise unfit, but that, considered in the light of all the circumstances, the children's lengthy placement with the grandmother was an "extended disruption of custody" (Domestic Relations Law § 72[2][b] ) sufficient to constitute extraordinary circumstances.

The testimony established that the older child spent extended periods living with the grandmother even before being formally placed in the grandmother's care in 2008; following that placement, she and the younger child lived continuously with the grandmother for the next five years. The father acknowledged that he had not acted as a responsible parent to the children

133 A.D.3d 1111

during the early years of their lives, that the grandmother had been the children's primary caretaker for years and that, as a result, the children had developed a very strong emotional bond with her. Taking into account "the cumulative effect" of these factors and the length of the children's residence with the grandmother (Matter of Melody J. v. Clinton County Dept. of Social Servs., 72 A.D.3d 1359, 1362, 899 N.Y.S.2d 419 [...